This is the first book on prescriptive servitudes in Scotland, as well as the first detailed and systematic account of the possession needed to establish servitudes under section 3 of the Prescription and Limitation (Scotland) Act 1973. It is written for both academic and practising lawyers.
In addition to analysing the current law, the book considers the origins and historical development of prescriptive servitudes, beginning with Roman law and culminating in the modern statutory regime. Material from other countries is used to set the Scottish doctrine in context and to suggest solutions to issues where the law is unclear or underdeveloped. Appropriate consideration is given to whether servitudes can truly be "possessed" or whether it is more accurate to conceptualise the "possession" of a servitude as a limited form of possession of the servient tenement itself. Among other topics considered are: the relationship between the wording of the 1973 Act and the requirement that possession be "as if of right"; what it means in practice to possess a servitude openly, peaceably, and "as if of right"; and in what circumstances the burden of proof rests on the landowner and the claimant respectively. The book concludes with a checklist setting out what, precisely, must be demonstrated by a person who seeks to establish that a servitude has been created by positive prescription.
|Publisher:||Edinburgh Legal Education Trust|